Amarica's Constitution
188 episodes - English - Latest episode: about 3 hours ago - ★★★★★ - 302 ratingsProfessor Akhil Reed Amar, Sterling Professor of Law and Political Science at Yale University and one of the nation's leading authorities on the Constitution, offers weekly in-depth discussions on the most urgent and fascinating constitutional issues of our day. He is joined by co-host Andy Lipka and guests drawn from other top experts including Bob Woodward, Nina Totenberg, Neal Katyal, Lawrence Lessig, Michael Gerhardt, and many more.
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Episodes
Resignation Realities and Bullets Dodged (Part 4)
July 17, 2024 04:14 - 1 hour - 176 MBPresident Biden is hearing calls from many quarters to step down as a candidate. Donald Trump is shot. Questions of presidential succession and/or resignation abound. While it may seem these are unique and strange situations which the American republic has never faced, in fact, resignation has been a key American issue for centuries. Episodes well-known, and others rarely taught, are reviewed on our podcast this week, providing context and counsel for our listeners, and hopefully for the ...
Disgrace
July 10, 2024 04:27 - 1 hour - 185 MBThe Court’s opinion in the presidential immunity case Trump v. US, has sunk in. On reflection it is even worse that on first impression, and that is saying something. But just to condemn the opinion is not enough. Professor Amar distills the Court’s argument to its essence and explains why it completely collapses under any kind of rigorous scrutiny. Its abandonment of originalism and of the constitution’s own terms is laid bare. How could the Court go so astray? We also take a stab at th...
Debate Debacle, and Agency Atrophy
July 03, 2024 04:28 - 1 hour - 214 MBIn an exhausting week, the Court released a number of long-awaited cases, and we had a consequential presidential debate. We look at several cases that many believe have profound implications for the administrative state; the opinions in SEC v. Jarkesy, and Loper Bright v. Raimondo clearly have the effect of increasing the role of courts and juries, among other things. We look at the opinions, the underlying themes, and the impact. Meanwhile, following the debate, questions of presidential ...
The Court's Originalism About Face
June 26, 2024 04:25 - 1 hour - 170 MBAs the end of the term approaches the deluge of major cases has begun. Two big cases - the eagerly awaited sequel to the Bruen case - Rahimi - features an orgy of originalist theorizing and opining. Meanwhile, in Moore v. US - a case where Professor Amar and his team had an amicus brief - the tax power was upheld, but reading the opinion one might wonder if the same Court had sat for this case. We take a look at the opinions and give our own take on these impactful cases, even as we brace...
Protests, Mifepristone, and Bump Stocks
June 19, 2024 04:24 - 1 hour - 186 MBAkhil is in Boston this week and reminds us that the history of the American Revolution, where Boston is so pivotal, contains myriad lessons that provide insight into the student protests of today - so we look at this subject in some detail. Meanwhile, the Court issued opinions in two prominent cases, and Akhil seems to be reluctant to take “yes” for an answer in one of them, so we take another look at issues of standing. Does Akhil convince you of the correctness of his approach? Finally...
Lear Jets, Books, and Virtue
June 12, 2024 04:54 - 1 hour - 155 MBThe Court is taking its time on major opinion, which gives us a moment to turn to other matters. Ethics remain in the news; the Court’s annual financial disclosures contain a number of surprises - maybe not so surprising. There’s a lot to say there, and we have some proposals to improve the situation. President Biden takes a position on a pardon, and we take a position on that. Our listeners continue to provide great input on an ongoing conversation, and we take it seriously. CLE is av...
The Jury Speaks
June 05, 2024 14:04 - 1 hour - 135 MBThe verdict is in: guilty x 34. A jury of Trump’s peers had its say, but the ex-president couldn’t leave it at that, of course. On the legitimate side, the appeals are expected to begin soon. On the Trump bombastic side, he blasted every institution in the legal system for having the audacity to do their duty. Particularly in the case of the ordinary citizens of the jury, this bears examination, and so we do. We also preview some of the likely appellate issues, lay out the expected path...
Big Mouth on Campus
May 29, 2024 04:21 - 1 hour - 172 MBThe nation has been riled by campus unrest surrounding events in the Middle East. Terms like “freedom of speech,” “academic freedom,” “right to protest,” “conduct vs. speech,” and issues of hate speech, offensive speech, safety, and more have arisen. We start our look at this situation where we always begin: with the Constitution. This episode aims to lay out the history, background, constitutional provisions, interpretations, cases, and overall approach to these matters, so we can then l...
Flags of Our Spouses
May 22, 2024 06:48 - 1 hour - 146 MBMore than three years after the January 6, 2021 disastrous events, we remarkably are just now first learning of a complex series of events with profound ethical implications for Justice Alito. Like his fellow justice, Clarence Thomas, Justice Alito’s wife’s actions, possibly political in nature, have placed the Justice in a position where his own actions are being widely questioned. We take it one step at a time and offer our analysis, even if we don’t entirely agree with each other on thi...
Trials, Pardons, and Elephants
May 15, 2024 04:03 - 1 hour - 209 MBDonald Trump’s New York trial - where a conviction would be federal pardon-proof - has proceeded apace. we are pleased to bring a report to you from the trial itself, introducing you to one of Professor Amar’s star students in the process. Are there constitutional issues stemming from the trial? You bet, and we address some of them. Meanwhile, a number of listeners have asked similar questions recently, so we take that family of questions on, and sure enough, there’s a lot to discuss there ...
Immunity versus The Rule of Law
May 08, 2024 09:09 - 1 hour - 132 MBThis week we continue with clips from the oral argument in the immunity case (Trump v. United States). Most of this week’s clips come from attorney Dreeben (representing the Special Counsel, and therefore the people of the United States), and some of the Justices have at him, sometimes in way Professor Amar finds wrong-headed or worse. Our own argument is brought to bear upon these controversies, and a consistent way of addressing these questions emerges. Clarity on the argument emerges. ...
Sense and Nonsense on Immunity
May 01, 2024 04:05 - 1 hour - 148 MBThe nine Justices heard arguments on ex-president Trump’s attempt to claim a sweeping immunity from criminal liability and prosecution. We present clips from the argument and our commentary, including some historical analysis of claims that Benjamin Franklin spoke in favor of such a thing (spoiler: NO), and many other claims which we had predicted in recent weeks. There is clear acceptance of some of the arguments we have made by many of the Justices, but questions remain to be sure, and ...
Don't Touch but Do Convict
April 24, 2024 04:38 - 1 hour - 150 MBAs we close in on oral argument in the Trump v. United States case wherein Trump asserts some sort of permanent presidential immunity, we close out our preparatory analysis. Impeachment’s relationship to criminal prosecution is explored. Some founding-era conversations involving, for example, John Adams, inform our discussion. Does the concept of double jeopardy play a role? Our hope is that these episodes prepare you for the oral argument with a comprehensive theory of how no one is held...
Crime Means Punishment
April 17, 2024 04:01 - 1 hour - 156 MBAs oral argument in the Trump immunity case draws closer, we continue our discussion of presidential immunity from criminal prosecution. Do so-called “official acts” during a president’s tenure in office raise special considerations? Constitutional text seems to offer an easy way out of the case - but does it, really - and historical precedents enter the conversation. Ultimately, some basic principles of immunity emerge, which leaves us with a much richer understanding of the many issues t...
Immunity Therapy
April 10, 2024 04:14 - 1 hour - 159 MBFormer President Trump is making an extraordinary claim to the Supreme Court: that he is immune from criminal prosecution for crimes he may have committed while president. The Court has agreed to hear arguments on this proposition on April 25. We begin the preparation by posing the questions and taking them on. Professor Amar is an expert on Presidential immunities. Our analysis goes through originalism as well as precedent. This and subsequent episodes form an oral amicus brief of sorts ...
No Standing Any Time
April 03, 2024 04:04 - 1 hour - 205 MBThe Supreme Court heard the case on the legality of FDA regulation of Mifepristone. Issues of standing seemed to dominate, so Professor Amar treats us to a master class on standing - in this case, and its recent evolution. He also suggests that at least one Justice might benefit by attending. In a wide-ranging episode, we also share excitement and some new scholarly insights that emerged from the recent EverScholar program led by Akhil and others; and the Trump gag order gives rise to some m...
History Will Judge
March 27, 2024 04:20 - 1 hour - 167 MBWe round up our analysis of the opinion in Trump v. Anderson with Justice Barrett’s concurrence. All of this has raised many questions, particularly in light of the Court’s errant reasoning and other shenanigans. And it turns out that many of the best questions come from you, our audience! So we turn to those as well, both about Section 3, and other matters as well. We also look at the news media’s latest interesting directions, including takes on Justice Breyer’s new book and seeds plan...
Dissenting in Concurrence
March 20, 2024 04:07 - 1 hour - 179 MBThe Trump v. Anderson lead balloon continues to smolder. This episode looks at the areas wherein the concurring Justices took issue with the per curiam, and they are many. Indeed, the three Justices who concurred only in the judgment disagree with the scope of the per curiam as well as its particulars, and their concurrence reads more like a dissent. Can we find areas of agreement with ourselves and the concurrences? What can we learn from all this? CLE credit is available from podcast....
What the Concurrences Should Have Said
March 13, 2024 04:22 - 1 hour - 141 MBThe concurrence by three Justices (as opposed to that of Justice Barrett) in Trump v. Anderson concurs only in the judgment. We look at different types of concurrences and why a Justice might choose one type or the other; and as for this one, we find much to dissent with. We dissect the arguments and now with the benefit of a week since the opinion, we “slow it down” and take you carefully through the logic and illogic we find. Can we locate common ground among justices who claim to be un...
Happy Anniversary Mr. Lincoln from the Court
March 06, 2024 07:12 - 1 hour - 171 MBThe Court has ruled in Trump v. Anderson, and a strange day it was. An announcement on a Sunday of opinion on Monday; no justices present; metadata weirdness, and worst of all, a unanimous opinion that is unanimously wrong. Concurrences that are dissents. A nearly 250 year old electoral college system that somehow escaped the Justices. Notorious cases cited with approval. The opinion is a veritable patchwork of error. The autopsy begins.
Staking our Claim
February 28, 2024 05:09 - 1 hour - 118 MBWe’re back, and still waiting for the opinion in Trump v. Anderson, which gives us a chance to highlight important new evidence that has come to light - thanks in large part to Professor Amar’s great law student team. It fatally undermines what seemed likely to be the reasoning the opinion was going to take. Will it matter? This is related to the role amici play in the Court ecosystem, and we look at how another case we had a brief in, Moore v. US, seemed to be possibly influenced by our ...
What the Oral Argument Should Have Said - Part 2
February 15, 2024 05:47 - 1 hour - 199 MBAs promised, we return in very short order with the completion of our analysis and response to the oral argument in Trump v. Anderson - before the Court has ruled. Again, key clips from the argument are played and dissected. The previous Part I episode concentrated on arguments concerning self-execution of Section Three; this episode reviews many of the other issues addressed by the Court, from questions of the nature of the Presidential Election and the closely related Electoral College, to...
What the Oral Argument Should Have Said
February 11, 2024 13:38 - 1 hour - 168 MBEARLY UPLOAD - The Supreme Court heard oral arguments in Trump v. Anderson on Thursday, and we were so alarmed by the errant direction they took that we decided to take to the air early. Here are key clips from the argument dissected - exposed, really - to reveal the mistaken representations of the meaning of certain cases; the ignoring of key facts which then distort others; the absence of key lines of argument; and the danger that the Court may be headed for another debacle on the scale of...
20 Questions on Section 3 and Insurrection #1 - Special Guest Ted Widmer
February 07, 2024 06:15 - 1 hour - 196 MBOral arguments are scheduled for this Thursday in the Trump v. Anderson case, concerning the possible disqualification of former President Trump from the ballot in Colorado, and with a myriad of questions surrounding Section Three of the Fourteenth Amendment at stake. We have something new to offer, as the distinguished historian, Professor Ted Widmer, joins us to add his considerable expertise to the oh-so-timely topics of John B. Floyd and the conspiracy to prevent the certification of Ab...
A Self-Educating Gaffe
January 31, 2024 05:32 - 1 hour - 177 MBOral arguments are approaching in the Trump v. Anderson case, and the nation is talking about little else. At the Harvard Law School, Professor Amar is invited to debate a former US Attorney General and Federal Judge, Michael Mukasey, who also submitted an amicus brief in the case together with Bill Barr and Ed Meese, among others. We analyze the debate - and the brief. And in that brief, Akhil identifies what he considers to be an egregious error, which is telling not only in its fatal w...
The Amicus Brief - Part Two
January 24, 2024 05:04 - 1 hour - 142 MBThe legal world is abuzz with the impending oral arguments in Trump v. Anderson in a couple of weeks. In the forefront are the powerful arguments and compelling history that are introduced in the amicus brief from the Professors Amar. We continue to delve into the principal lines of reasoning in the brief, and how they take the starch out for some of the tropes that were found in the media. When you take the history one step at a time it is hard to escape the obvious parallels with the ac...
Friends of the Court - The Brief
January 20, 2024 16:47 - 1 hour - 156 MBThe “brothers-in-law” Vik and Akhil Amar have filed an amicus brief in Trump v. Anderson et al. The brief contains a dramatic historic episode that you almost certainly knew nothing about, and which is highly relevant - perhaps decisive - to the case. Prepare to be amazed by this story of the “First Insurrection,” which preceded and was distinguishable from the Civil War itself, and which makes clear the certain intent of the framers and ratifiers of the Fourteenth Amendment - and the cour...
Section Three Goes to Washington
January 10, 2024 11:22 - 1 hour - 139 MBThe months of discussion of Section Three on Amarica's Constitution now make their way to Washington, as cert has been granted in Trump v. Anderson. Amicus briefs will pour in - including the brothers Amar's brief. We present some of the approach the brief will take, and we look at the nine Justices, taking account of their jurisprudential history and styles, and discuss how an intellectually honest brief-writer can make their best arguments even better by considering how their readers wil...
Section Three Punditry: The Good, The Bad, and The Silly
January 03, 2024 05:20 - 1 hour - 200 MBThe nation awaits the Supreme Court’s seemingly inevitable review of the Section Three case from Colorado, and perhaps Maine as well. Media around the world is weighing in with editorials and op-Ed’s; a smorgasbord of legal, political, and predictive arguments from professors, editors, elected officials, and others with their own range of expertise. We continue our attempt to help you make sense of these by choosing pieces that make the range of arguments out there. We do our best to pres...
The World Turns to Section Three
December 27, 2023 05:10 - 1 hour - 212 MBThe Colorado Supreme Court opinion on disqualifying Donald Trump, though long anticipated, landed like a tornado. Op-eds, pundits, academics, officials - all are weighing in. It’s a victory for democracy - no, it’s antidemocratic. Section Three is a dead letter - no, it’s self-executing. Trump is out - no, this helps him. America is reaffirmed - no, there will be violence in the streets. Liberals are split; conservatives are split. What will the Supreme Court do? Spend some time with ...
Juries, Jarkesy, and a Joke
December 20, 2023 05:06 - 1 hour - 204 MBThe administrative state is up for grabs, some say, in the case of SEC v. Jarkesy, which was argued before the Supreme Court recently. We have another “clip” episode, with Akhil weighing in on attorneys and justices alike. It’s particularly appropriate in this case, because so much of the case concerns juries and the 7th amendment - which, by the way, Akhil has written extensively on. That’s probably why he’s cited in so many of the briefs. We also heard some noise out of Colorado, by th...
2 Experts, 3 Courts, Section 3, Part 3 - Special Guests William Baude and Michael Stokes Paulsen
December 12, 2023 14:04 - 1 hour - 211 MBThe question of Donald Trump's disqualification under Section 3 of the 14th Amendment is before the courts. Last week the Colorado Supreme Court heard appeals of the District Court rulings. As they consider their decision, we have the privilege of hearing from the nation's two leading experts on the subject, the author of The Sweep and Force of Section Three - the universally acknowledged definitive article. (Note: this episode is uploaded a day early because of the timing of the case.) Th...
Sandra the First
December 06, 2023 05:02 - 1 hour - 176 MBThere is no shortage of tributes to the just passed Justice Sandra Day O’Connor, and rightly so, and this first female Justice richly deserves praise and memory. We aim to offer a tribute by taking her seriously as a Justice of ideas as well as the frequently mentioned deeply human remarkable woman she was. Fortunately, Akhil’s career has been intertwined with Justice O’Connor’s in a remarkable back-and-forth of ideas, cases, refinement, and legal innovation, so our perspective is a deeply ...
Sense and Nonsensibility on Section 3 - Special Guests Mark Graber and Gerard Magliocca
November 29, 2023 05:05 - 1 hour - 168 MBDonald Trump’s disqualification for the Presidency under Section 3 of the 14th Amendment is on the docket for the Colorado Supreme Court next week. We have brought the two leading experts on the history of this clause to our podcast. They have written extensively on the 38th-40th Congresses who passed and first acted under the amendment; on John Bingham, the “James Madison” of the Fourteenth; and they continue to provide pertinent historical details on almost a daily basis. Professor Magli...
Guns, Clips, and Rahimi
November 22, 2023 05:06 - 1 hour - 183 MBThe Supreme Court heard oral arguments in US v. Rahimi, a significant gun case, and we get to work. We have pulled clips from the argument so you can hear the justices and advocates in their own words, and Akhil comments after each clip. The case is important in itself, with wide implications regarding permissible gun regulation, and it also touches on a number of key methodological points that teach about originalism - properly done, and perhaps at times, improperly done. CLE credit is a...
Moore on the Brief - Special Guest Vikram David Amar
November 15, 2023 05:19 - 1 hour - 142 MBThe Amars’ amicus brief in Moore vs. United States is the talk of the legal ecosphere. Akhil’s co-author, Professor Vik Amar, joins us for analysis of the precedents that followed Hylton - faithful and otherwise. This tour de force of legal analysis is perfectly suited for your CLE credit. We also look at recent comments from the Supreme Court on Moore’s issues, and survey the reactions to the brief’s release. Various arguments that purport to address some of the brief’s claims have emer...
Moore, in Brief
November 08, 2023 05:29 - 1 hour - 163 MBIn our 150th episode, we present the amicus brief in Moore v. United States, authored by Professor Amar with his brother, Professor Vikram Amar. Reminder: CLE credit is available after listening by going to podcast.njsba.com. The brief begins with the provocative statement that most other briefs in the case have missed the point? What is the point that they missed? We explain how their focus on the 16th amendment misses the basic constitutional questions which the Court answered back in ...
Aisles, not Walls
November 01, 2023 05:23 - 1 hour - 163 MBThe follies in the House have ended, for now. Many Americans looked upon the travesty with despair, wondering if our government might yet be up to the task of leading and reaching beyond party to find country and duty. We take a good look and search for places where reaching across the aisle might still take place - and we try to do our part and go beyond demonizing those not in our own party. Plus - the Amars’ amicus brief is up in Moore vs. US, and we open that door. This episode is el...
Speakerless
October 25, 2023 04:15 - 1 hour - 146 MBStill no speaker. Is it really the case that the House can’t do anything? How might it work? What about Section 3 of the 14th Amendment - does it play any role in the Speaker selection process? Meanwhile, we turn towards the other Jordan and see the dangers of insecure borders that are inherently hard to defend. Professor Amar explains how this simple fact led him to insights that resulted in a constitutional narrative quite different from those you may have been taught, and which makes...
A Tale of Two Jordans
October 18, 2023 04:11 - 1 hour - 173 MBThe House is at it again, and there is no Speaker in the chair as of this recording. So many implications - for Presidential succession, for democratic governance, for legislative stalemate. Meanwhile violence escalates in the Middle East. How are these connected? We explore all these, and Akhil has some fascinating originalist analyses - of history you surely didn’t know; of structural reasons that the Speaker can’t be in the line of succession; and a new textual analysis. Meanwhile - ...
Allen and Affirmative Action, Again
October 11, 2023 04:10 - 1 hour - 153 MBAfter the Court decided important voting rights and affirmative action cases last term, these issues are back either before the Court or apparently headed for it. Why? We look at Allen v. Milligan, and affirmative action in the service academies, and find that the bounce-back of what seem to be entirely unrelated cases in fact demonstrates important constitutional and indeed originalist principles. And who is at the center of all this? Justice Kavanaugh, once again. (CLE CREDIT IS AVAILABL...
Eleven Presidents - Special Guest Bob Woodward
October 04, 2023 04:06 - 1 hour - 167 MBThe career of America’s greatest investigative reporter has spanned more than 50 years, and Bob Woodward has told the stories of eleven presidents, the Supreme Court, the Intelligence Community, and indeed the American political system with a penetrating, persistent drive towards the truth. (LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after listening.) Today this titan spends 90 minutes with us, and the insights continue to pour out of ...
Have Kavanaugh, Will Travel
September 27, 2023 08:47 - 1 hour - 117 MBIt’s almost October, and the Supreme Court readies to hear a new set of cases. The Roberts Court seems defined above all by the Dobbs decision at this point. The opinion, authored by Justice Alito, has been exhaustively dissected, but looking forward, we see various states taking further and more extreme actions. What role will the so-called swing justices, some of whom wrote concurrences in the case, play in the litigation that the new developments will likely spawn? What of the dire pr...
Justice Jackson’s Santa Clause
September 20, 2023 12:40 - 1 hour - 197 MBIt’s an assortment of topics as listeners response to some recent developments and nagging questions. We revisit the 303 case, specifically the dissent, as Justice Jackson lays out an interesting hypothetical that doesn’t produce, perhaps, the intended response - at least from Professor Amar. Meanwhile, Justice Alito is back in the news with his judicial Declaration of Independence - Akhil may not quite agree. We also have an exciting prelude to a big announcement about our podcast!
An Officer and a President
September 13, 2023 04:33 - 1 hour - 162 MBTwo recent major podcast themes - section 3 of the fourteenth amendment, and judicial ethics - echoed through the news this past week. Wisconsin legislators seek to impeach a new state Supreme Court Justice before she even sits for a case; and in Washington, Justice Alito is asked to recuse himself because of an interview he gave. Meanwhile, Section 3 is addressed by a former US Attorney General, who says it is inapplicable to the President for reasons that may seem counterintuitive, even s...
The Two Experts, Part Two - Special Guests William Baude and Michael Stokes Paulsen
September 06, 2023 04:08 - 1 hour - 134 MB***CLE Available*** We continue our exclusive discussion with the Professors Baude and Paulsen, authors of the bombshell article declaring Trump ineligible for the Presidency. This time we explore some concerns that have been voiced in the media and elsewhere; we look at how this provision might make itself effective in practice. We trace the possible routes such an effort might take; where would it be initiated - and importantly, who would be the final authority? Along the way we enter t...
The Two Experts on Section Three - Special Guests William Baude and Michael Stokes Paulsen
August 30, 2023 04:04 - 1 hour - 172 MB***CLE available*** In a special episode, the two distinguished authors of a recent major article, which dives deep into Section 3 of the Fourteenth Amendment and finds that Donald Trump is disqualified from the Presidency, join us for a thoughtful and rigorous examination of the tough questions about their conclusions. These are leading conservative scholars who have gone where their methodologies, and the law, has taken them. Reaction has been swift and impassioned around the country, an...
Georgia On Our Minds - Special Guest Ruth Marcus
August 23, 2023 04:22 - 1 hour - 137 MBEveryone needs a translator, and for decades there have been few better than Washington Post columnist, reporter, and editor Ruth Marcus. She has made understandable the intricacies of many a Supreme Court matter, not to mention the vicissitudes of other Washington institutions. Now, with Federal and State cases against former president Trump pending, the complexities are impressive, but we take you through them with Ruth’s help. There are also stories galore, with angles political, const...
This Must Be The Place
August 16, 2023 07:43 - 1 hour - 161 MBEx-President Trump faces a number of trials, and he doesn’t like where some of them are. Too many Democrats, or he doesn’t like the judge. Does he have recourse? No surprise - Professor Amar has written on this subject. There is a fascinating history behind it, an originalism analysis, and, most importantly - an answer. Changes of venue, bench trials, peremptory challenges, unanimous verdicts - they all find their way into this episode.
Third Time’s A Charm
August 09, 2023 16:42 - 1 hour - 192 MBHe's baaack. Former President Trump has been arraigned once again, this time on serious federal charges related to the very heart of democracy - the election itself. Special Counsel Jack Smith continues to discharge his appointed function by bringing charges he deems warranted. Beyond Smith, however, do the American people have other means of redress? And if Trump is guilty, will these prosecutions prevent him from seeking and possibly gaining the White House? Akhil has some surprising ...